Document ID: A:\NARUC.TXT NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, the National Association of Business & Educational Radio, Inc., General Electric Company, the Special Industrial Radio Service Assn., Inc., the Central Committee on Telecommunications of the American Petroleum Institute, Utilities Telecommunications Council, North Carolina Utilities Commission, South Carolina Public Service Comm., the People of the State of California and the Public Utilities Commission of State of California, Intervenors. NATIONAL ASSOCIATION OF RADIOTELEPHONE SYSTEMS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, The National Assn. of Business & Educational Radio, Inc., A.T. & T. Inc., General Electric Co., Special Industrial Radio Service Assn., Inc., Motorola, Inc., and Airsignal International, Inc., Intervenors. ILLINOIS ASSOCIATION OF RADIO-TELEPHONE SYSTEMS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, National Association of Business & Educational Radio, Inc., and General Electric Company, Intervenors. RAM BROADCASTING COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, National Association of Business and Educational Radio, Inc., and General Electric Company, Intervenors Nos. 74-1555, 74-1585, 74-1659, 74-1696 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 525 F.2d 630; 1976-1 Trade Cas. (CCH) P60,865; 173 U.S. App. D.C. 413 September 12, 1975, Argued January 5, 1976 SUBSEQUENT HISTORY: As Amended January 28, 1976. PRIOR HISTORY: Petitions for Review of an Order of the Federal Communications Commission. COUNSEL: Kenneth E. Hardman, Washington, District of Columbia, with whom Paul Rodgers, Was Abe Fortas, Washington, District of Columbia, for Petitioner in No. 74-1585. John E. Ingle, Counsel, F.C.C., with whom Ashton R. Hardy, Gen. Counsel, Daniel M. Arms .C.C., at the time the record was filed, also entered an appearance for Respondent F.C.C. John P. Bankson, Jr., Washington, District of Columbia, for Intervenor National Ass'n o Louis Schwartz, Robert A. Woods and Lawrence M. Miller, Washington, District of Columbi James A. Koerner, Washington, District of Columbia, was on a statement filed in lieu of Charles A. Horsky, Charles Lister, Washington, District of Columbia, Alfred C. Patroll strict of Columbia, also entered an appearance for Intervenor American Telephone and Teleg Wayne V. Black and Larry S. Solomon, Washington, District of Columbia, were on the brie Joseph E. Keller, Wayne V. Black and Larry S. Solomon, Washington, District of Columbia Charles M. Meehan and Peter M. Nemkov, Washington, District of Columbia, were on the br Edward B. Hipp and Robert F. Page, Raleigh, North Carolina, were on the brief for Inter Richard D. Gravelle, J. Calvin Simpson, San Francisco, California, and Randolph W. Deut Frederick M. Rowe, John L. Bartlett and John B. Wyss, Washington, District of Columbia, Joseph M. Kittner and Edward P. Taptich, Washington, District of Columbia, entered appe Robert E. Conn and Thomas J. McCabe, Washington, District of Columbia, entered appearan M. John Bowen, Jr., Columbia, South Carolina, entered an appearance for Intervenor Sout JUDGES: Tamm, MacKinnon and Wilkey, Circuit Judges. Opinion for the Court filed by Circui OPINIONBY: WILKEY OPINION: [*633] WILKEY, Circuit Judge Petitioners seek review of a two-part 1975 F.C.C. Memorandum Opinion and Order n1 (here ation, of a Second Report and Order, n3 (hereinafter 1974 Order), [*634] which issued - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Land Mobile Service, Docket No. 18262, 51 F.C.C.2d 945 (19 March 1975); Land Mobile n2 Notice of Inquiry and Notice of Proposed Rule Making, Land Mobile Use of 806-960 MHz n3 Land Mobile Radio Service, Docket No. 18262, 46 F.C.C.2d 752 (1 May 1974). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Orders under review deal with the allocation of frequency spectrum, in the 806-921 io communication services, based on land, where either the transmitting or receiving stati - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 47 C.F.R. @ 2.1 (1974). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Such services are of two general types. Public services are operated by common carrier e systems. Private services apparently include all other mobile radio operations, i.e., th mpanies, for their own purposes. However, they are not limited to services which an operat The 1974 Order, as modified by the 1975 Order, embodies three distinct actions. First, s system. (Initially, the Commission intends to authorize use of the minimum spectrum need unit of spectrum than do present mobile communication methods. When operative, which will public, common carrier system, and will serve primarily to expand the capacity of radio t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 46 F.C.C.2d at 761. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The 1974 Order limited the group of eligible applicants for licenses to operate on thes a license will nonetheless be required to demonstrate that it has the resources and techno . n9 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Id. at 760. n7 51 F.C.C.2d at 953. n8 Id. at 955. n9 Id. at 952, 46 F.C.C.2d at 761. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Second, 30 MHz (806-821 MHz and 851-866 MHz) is allocated to private services, to be li is allocation makes available additional spectrum for eligible applicants who wish to obta Orders would create a new category of private mobile operators, eligible for licensing on de service to third parties. Licensing is to be on a first-come, first-served basis, with refinement of mobile radio technologies, the Commission concludes that SMRS should not be - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 47 n11 51 F.C.C.2d at 956-57. n12 46 F.C.C.2d at 762. n13 51 F.C.C.2d at 974. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Third and last, the 1975 Order designates the remaining 45 MHz of the total 115 MHz all - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 Id. at 946. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - I. 40 MHz Allocation for the Creation of Cellular Systems The power to make this allocation of spectrum for the development of sophisticated and ation of radio, and states that the exercise of all powers should be guided by the require - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 47 U.S.C. @ 303(c) and (g) (1970) provides: Except as otherwise provided in this chapter, the Commission from time to time, as publ * * * (c) Assign bands of frequencies to the various classes of stations, and assign frequenc * * * (g) Study new uses for radio, provide for experimental uses of frequencies, and general - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The authorizations of powers under subpart (c) to assign bands of frequencies to variou cation at issue here. However, it has been challenged on a variety of grounds, as exceedin First, the argument is made that the allocation is excessive in light of both the techn tainty as to how much spectrum will be necessary or desirable for the functioning of cellu s now under review, the Commission proposed an allocation of 75 MHz. n16 After substantial 1974 Order to reduce the allocation to 40 MHz. n19 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 First Report and Order, Spectrum Space for Land Mobile Services, Docket No. 18262, n17 Letter (undated) from the Assistant Attorney General, Antitrust Division, U.S. Depa n18 Letter dated 17 August 1973, from the Director, Office of Telecommunications Policy n19 46 F.C.C.2d at 756. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - AT & T, which initially proposed the cellular system and is the company now most deeply stantially increase the implementation cost of "attractive" design features then under dev he development of a cellular system to meet projected mobile telephone needs. n21 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 51 F.C.C.2d at 948. n21 (J.A. at 333). Also, Motorola has argued in some detail that an allocation of 19 MH - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Ord determination of how much band width to allocate to cellular systems is at once a highly is now only partially developed, and upon projected demands for radio telephone service. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 51 F.C.C.2d at 948; 46 F.C.C.2d at 756-57. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We conclude that such determinations are precisely the sort that Congress intended to l agencies, the standard of review is that of the reasonableness of the conclusions reached as either unreasonably large or unreasonably small. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 749, 92 S. Ct. 1941, 3 6, 86 L. Ed. 301 (1941). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - More substantial arguments are raised pertaining to possible anticompetitive effects of ne market. Second, it is stated that the authorization of dispatch service (in all but fle Both of these results are said to put the Order in violation of the antitrust component o - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 51 F.C.C.2d at 952 and n. 16; 46 F.C.C.2d at 761. n25 There is a good deal of authority for the proposition that competitive factors may 3 L. Ed. 2d 354 (1959); F.C.C. v. R.C.A. Comm., Inc., 346 U.S. 86, 94, 73 S. Ct. 998, 97 But see Hawaiian Telephone Co. v. F.C.C., 162 U.S. App. D.C. 229, 235, 498 F.2d 771, 777 ( may not "automatically equate the public interest with additional competition."). Whether and to what extent decisions of the Commission are reversible for failure to co - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On the face of the record, there appears to be a significant plausibility to both of th good reason to believe that AT & T will operate most, if not all, of the cellular systems & T has already made a substantial investment in its development. In spite of the 1975 Ord ireline carriers will be able to demonstrate that they have the resources [*637] and e - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 46 F.C.C.2d at 753-54. n27 51 F.C.C.2d at 953. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - If it is thus true that AT & T is the likely recipient of a virtual monopoly in the ope wireline communications. First, AT & T appears likely to dominate substantially the field of radio telephone ser re severe by the 1975 Order's elimination of a requirement that wireline operators offer t of improved mobile radio systems, n30 and because it would enhance the already enormous o - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28 OTP Report, supra note 18, at 8 (J.A. at 337). n29 51 F.C.C.2d at 946. See OTP Report, supra note 18, at 12 (J.A. at 341); Justice Dep This part of the Commission's decision is somewhat puzzling. A substantial anticompetit is "unnecessary" in light of its decision not to license trunked systems. We agree with t the proof by the results. n30 Justice Dept. Report, supra note 17, at 2 (J.A. at 346). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Second, AT & T will become a significant force in the now highly competitive market for ch AT & T's other communications activities may facilitate its operations in the dispatch - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n31 It is unclear whether the authorization to engage in dispatch service is in violati vices," but excepts from the bar "services incidental to the furnishing . . . of common ca Because of our general disposition of these competitive issues, see infra, we reserve f and if not, whether the dispatch services carried on are "incidental." n32 See Justice Dept. Report, supra note 17, at 6. (J.A. at 350) (asserting that "the a ely significant."). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Although the Commission has included in the 1975 Order certain actions that are designe projected market power of AT & T in either cellular system or dispatch operations. In par ined. n33 This requirement is designed to prevent cross-subsidization of the activities of ever, even perceived most favorably, this action does nothing except attempt to make finan - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n33 51 n34 Cutting prices below marginal cost in order to discourage competition is the most b 0). E.g., Standard Oil Co. v. United States, 221 U.S. 1, 43, 31 S. Ct. 502, 55 L. Ed. 619 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The 1975 Order also imposes certain restrictions on the manufacture, provision, and ser other corporations becoming involved in these manufacture and service functions. Even then e competitive situation in the dispatch market. Even the modest expectation of increasing competition in the manufacture, supply and ma ipment, and not to the base station equipment now under development by AT & T. There appea on supply and maintenance (as distinguished from manufacture) of mobile equipment by wire iction remaining is a general bar on manufacture of mobile equipment by wireline carriers, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n35 51 F.C.C.2d at 951-52. n36 Id. at 952. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In spite of our conclusion that significant anticompetitive effects may well result in not, at this time, a breach of the broad discretion n37 allocated to the Commission under ogy. Thus far, the Commission has stated its clear intention to authorize only a developme of the system as a whole, and this includes being on the lookout for possible anticompeti - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n37 The substantial discretion generally allowed the F.C.C. in determining both what an oresee nor easily comprehend the fast-moving developments in the field, it "gave the Commi e Co., 392 U.S. 157, 172-73, 88 S. Ct. 1994, 20 L. Ed. 2d 1001 (1968); F.C.C. v. Pottsvill 282, 284 (1966). n38 See note 25 supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We are strongly influenced by the position of the Justice Department in full [*639] s 75 Order does not fully ameliorate several of Justice's concerns. n40 Nonetheless, the Dep in part on the view that there will be ample opportunity to challenge anticompetitive effe make a continuing assessment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n39 Respondent's Brief is filed jointly by the F.C.C. and the Justice Department. n40 In particular, the Order authorizes entry of wireline carriers into the dispatch ma pt. Report, supra note 17, at 6, 7 (J.A. at 350-51). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Our affirmance of the 40 MHz allocation for the development of a cellular common carrie periment and encourage new uses of radio, n41 coupled with the lack of urgency surrounding the antitrust component of the public convenience, interest and necessity standard, n42 w es, which issue is not presently before us. n43 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n41 47 U.S.C. 303(g) (1970). n42 See note 7-3 supra. n43 Under 47 U.S.C. @ 313(a) (1970), the antitrust laws are fully applicable to the man - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - II. 30 MHz Allocation for Use by Private Mobile Service, Including a New Class of Entrepr The aspect of the 30 MHz allocation which is challenged is the authorization of a new c and Transportation Radio Services. n44 Private operations involve primarily dispatch servi ystems operated on a cooperative basis for the benefit of several affiliated users. n45 Th of third party clients. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n44 See 47 C.F.R. @@ 89, 91, and 93 (1974). n45 Under 47 C.F.R. @ 89.604(a) and (b)(1974), several operators may be separately lice Licensing -- Safety and Special Radio Services, Docket No. 18921, 24 F.C.C.2d 510 (15 Jul - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In authorizing the creation of these entrepreneurial Specialized Mobile Radio Systems ( operators including SMRS, are to be processed, up to spectrum capacity, on a first-come, f treat SMRS, like all other private operators, as non-common carriers, and to pre-empt stat - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n46 51 the same basis" as those of applicants for "private or shared communication facilities." 4 n47 51 F.C.C.2d at 957. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The non-common carrier classification is the pivot upon which the Commission's scheme f applicable certain provisions of Title III (Radio Licensing), which require a 30-day waiti -common carriers appears to have certain effects on the power of federal pre-emption, whic - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n48 47 U.S.C. @@ 201-05 (1970). We do not here hold that the Commission is required to plicable, and leave to a case presenting that issue the problem of whether Title II powers n49 47 U.S.C. @ 309(b) (1970). n50 47 U.S.C. @ 309(d) (1970). Section (d) applies to the categories set forth in secti - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - A. Classification of SMRS as Non-Common Carriers 1. Statutory Definition of Common Carrier For purposes of the Communications Act, a common carrier is "any person engaged as a co for hire to the public." n52 However, the concept of "the public" is sufficiently indefini - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n51 47 U.S.C. @ 153(h) (1970). n52 47 C.F.R. @ 21.1 (1974). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In seek ctrine was used to impose a greater standard of care upon carriers who held themselves out ic character. This character, coupled with the lack of control exercised by shippers or tr - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n53 This insurance obligation has never been unexceptioned, and has not extended to act , 62 U.S. (21 How) 7, 23, 16 L. Ed. 41 (1858). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The late nineteenth century saw the advent of common carriers being subjected to price nopoly power exercised by the railroads, coupled with the fact that they "exercise a sort ies found to be affected with a public character, even where nothing approaching monopoly ions on the basis of the quasi-public character of the activities involved. n56 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n54 Munn v. Illinois, 94 U.S. (4 Otto) 113, 130, 24 L. Ed. 77 (1876). For an historical ess Affected with a Public Interest, 43 Harv. L. Rev. 759 (1930). n55 49 U.S.C. @@ 301-27 (1970). n56 See American Trucking Ass'ns, Inc. v. United States, 101 F. Supp. 710 (N.D.Ala.1951 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Whether the common carrier concept is invoked to support strict tort liability or as a is not enough that a carrier offer his services for a profit, since this would bring with cit in the common carrier concept is that the carrier "undertakes to carry for all people - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n57 Home Ins. Co. v. Riddell, 252 F.2d 1 (5th Cir. 1958); Ciaccio v. New Orleans Public n58 Semon v. Royal Indemnity Co., 279 F.2d 737, 739 (5th Cir. 1960); Home Ins. Co. v. R 04 P.2d 930, 941 (1957); Utilities Comm. v. Gulf Atlantic Towing Corp., 251 N.C. 105, 110 The following cases state the test in similar wording, while not finding that a given c Kutz, 241 U.S. 252, 255, 36 S. Ct. 583, 60 L. Ed. 984 (1916); Grace Line, Inc. v. F.M.B., , 893 (1957); State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 102 S.W.2d 99, 102 (1937); The F.C.C. has expressed a similar view of the common carrier concept as applied to com adio whereby all members of the public who choose to employ such facilities may communicat ber 1966). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This does not mean a given carrier's services must practically be available to the enti population. And business may be turned away either because it is not of the type normally particular cases, whether and on what terms to deal. n59 It is not necessary that a carri - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n59 Semon v. Royal Indemnity Co., 279 F.2d 737, 739-40 (5th Cir. 1960). n60 Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 211-12, 48 S. Ct Steel Co. v. McGee, 380 F.2d 640, 647-48 (5th Cir. 1967). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This requirement, that to be a common carrier one must hold oneself out indiscriminatel rriers was that they had implicitly accepted a sort of public trust by availing themselves a special burden of care, in exchange for the privilege of soliciting the public's busine Moreover, the characteristic of holding oneself out to serve indiscriminately appears t hole public, n61 and that private carriers may serve a significant clientele, apart from t sion a sensible line between them which does not turn on the manner and terms by which the ne between the two types of carriers. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n61 Terminal Taxicab Co. v. Kutz, 241 U.S. 252, 255, 36 S. Ct. 583, 60 L. Ed. 984 (1927 n62 Home Ins. Co. v. Riddell, 252 F.2d 1, 4 (5th Cir. 1958). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally, the holding out prerequisite to common carrier status is not without implicit Unlike "public correspondence," "private line service" is distinguished by its being set ith the distinction between common carrier and non-common carrier operators. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n63 "Public correspondence. Any telecommunication which the offices and stations, by re n64 "Private line service. A service whereby facilities for communication between two o C.F.R. @ 21.1 (1974). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 2. App In order to overturn the Commission's classification of SMRS as non-common carriers, th It is not an obstacle to common carrier status that SMRS offer a service that may be of p egulations. n65 The key factor is that the operator offer indiscriminate service to whatev serve indifferently, and if not, second, whether there are reasons implicit in the nature - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n65 47 C.F.R. @ 89.604(c) (as amended per 1975 Order, 51 F.C.C.2d at 993). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As to possible regulatory compulsion, there is no indication in the proposed regulation any way limited. The application provisions require that SMRS applicants certify that they 43] forth limitations on mode of operation contain any such provision. n67 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n66 47 C.F.R. @ 89.702(a)(2) (as amended per 1975 Order, 51 F.C.C.2d at 996-97). n67 47 C.F.R. @ 89.655 (as amended per 1975 Order, 51 F.C.C.2d at 995-96). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Nor is there evidence in the administrative scheme of an implicit intent so to require. It would appear that the FCC might have made special provision assuring adequate allocati - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n68 47 C.F.R. @ 89.803(b) (as amended per 1975 Order, 51 F.C.C.2d at 999). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally ccess to dispatch services may have been dealt with by authorizing dispatch services by co - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n69 51 F.C.C.2d at 952. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Since one may be a common carrier by holding oneself out as such, we must inquire furth t the outset it appears that this inquiry must be highly speculative, both because no oper The nature of the dispatch services which SMRS will primarily offer appear necessarily 70 In such a situation, it is not unreasonable to expect that the clientele might remain r r the commercial mode of operation, SMRS will be much like non-profit community repeaters. bility among those employing the service. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n70 See 47 C.F.R. @ 89.702(a)(2)(iii) (as amended per 1975 Order, 51 F.C.C.2d at 997) ( n71 See note 45 supra. n72 47 C.F.R. @ 89.702(a)(2)(iii) (1974). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - If the SMRS business is as hypothesized above, and nothing in the briefs or argument in reasons that the operator would desire and expect to negotiate with and select future cli s a whole and the other clients already using it. Methods of operation and time demands ma the particular time demands already being put on the system. n73 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n73 For example, an operator might be in a position to accept an applicant whose primar ay be suited to different users and different user needs. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We therefore conclude that nothing in the record indicates any significant likelihood t they desired, that is not sufficient basis for imposing the burdens that go with common c to bring them within the common carrier definition. Further, we reject those parts of the Orders which imply an unfettered discretion in th of common carrier is sufficiently definite as not to admit of agency discretion in the cla 5 Thus, we affirm the Commission's classification not because it has any significant discr re not common carriers. n76 If practice and experience show the SMRS to be common carriers - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n74 The strongest statement of this sort is in the 1974 Order: We are fully aware . . . that some of the entities we propose to license, i.e., entreprene ding is . . . to make available to the land mobile service additional spectrum and to do t prehensive regulatory scheme is best suited for the purpose." 46 F.C.C.2d at 763-64. See a n75 United States v. California, 297 U.S. 175, 181, 56 S. Ct. 421, 80 L. Ed. 567 (1936) But see Philadelphia Television Broadcasting v. F.C.C., 123 U.S. App. D.C. 298, 300, 35 reinforced where, as here, the legislative history is silent, or at best unhelpful, with r n76 The statements of the Order can be made to square with the view of this court, if t out asserting that this was the Commission's meaning, it is clear that the Commission had - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally, we reject any implications in the Orders n77 and argument of the Commission th n enacted, the two titles were seen as applying to two largely discrete realms of activity which were originally the primary target of Title III. Nonetheless, the language of Title - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n77 See 46 F.C.C.2d at 763. n78 See IV B. Schwartz, The Economic Regulation of Business and Industry 2374 (1973). n79 47 U.S.C. @ 201 (1970). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Moreover, the result of a radio operator being held subject to Title II is not to creat ther to make additionally applicable [*645] certain provisions including those dealing or denial of an application. n84 Therefore, if it is at some time demonstrated that SMRS a - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n80 47 U.S.C. @ 303 (1970). n81 47 U.S.C. @@ 201-05 (1970). n82 47 U.S.C. @@ 206-09 (1970). n83 47 U.S.C. @@ 210-12 (1970). n84 47 U.S.C. @ 309(b) and (d) (1970). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - B. Impact of Non-Common Carrier Status on Federal Regulation Our decision to uphold the Commission's classification of SMRS as non-common carriers l e, first-served basis, out of a pool which includes, as well, all individual and system-sh examine their financial qualifications. n85 Most importantly, the Commission intends to l - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n85 51 F.C.C.2d at 957. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - There is no facial violation of the statute resulting from any of these actions, once t I which apply only to common carriers. n86 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n86 Sections 309(b), (d), dealing with delay before granting an application and right t @ 309(b), (d) (1970). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Also, the provision of 47 U.S.C. @ 308(b) authorizing consideration of factors of "citi . That section leaves it within the discretion of the Commission to decide which facts rel nds such action appropriate, it follows necessarily that the Commission is not required to - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n87 47 U.S.C. @ 308(b)(1970). See also 51 F.C.C.2d at 960. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Nor, going beyond the words of the statute, can we conclude that in authorizing the cre radio under the "public convenience, interest and necessity" standard. The Commission has rder reveals an in-depth consideration of the effects of such a competitive approach n88 s - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n88 51 F.C.C.2d at 967-71. n89 Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S. Ct. 1344, 1373, 20 L. Ed. 2 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The allegation of a breach of discretion in failing to give adequate consideration to p that fact does not confer upon any aspect of the Order a [*646] clear anticompetitive ll not impair its efforts to operate such systems, no reason has been made known to us why - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n90 See OTP Report, supra note 18, at 11 (J.A. at 340): "We see no justification for ex - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Motorola's substantial size and financial power is, of course, a factor which could dis d not from any of Motorola's mobile radio-related activities. It is a factor which the Com ntitrust actions. However, on the present record, no such anticompetitive effects have bee - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n91 See note 25 supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - C. Impact of Non-Common Carrier Status on Aspects of the Order Relating to State Regul The 1975 Order pre-empts possible assertion of state entry certification over SMRS. n92 of maximizing the development of mobile radio technology. n93 Because we have held above onsistent with the policy adopted may be pre-empted, unless such pre-emption is explicitly r certain areas regulated by the states. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n92 51 F.C.C.2d at 974. The 1974 Order had pre-empted all state regulation of SMRS oper nt for SMR systems . . ." but "defer[s] judgment as to any action by the states relating t n93 See Florida Lime & Avocado Growers, Inc., et al v. Paul, 373 U.S. 132, 142, 83 S. C - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Section 221(b) of Title 47, U.S.C., denies Commission jurisdiction except as provided b phone exchange service," and further appears highly arguable that the @ 301 licensing powe unds. Rather the context of @ 221 within the Title dealing with common carriers, and the s he Commission's non-common carrier classification of SMRS, @ 221(b) has no application her Section 152(b) of Title 47, U.S.C., expresses a similar denial of Commission jurisdicti rrier with whom it has no interlocking control relationship. Reserving the same question s erstate operations to which the section applies, we again rest our holding on other ground ur affirmance of the Commission's non-common carrier classification of SMRS vitiates any o III. Conclusion The 1974 Order, as modified by the 1975 Order, is upheld. In affirming the allocation of 40 MHz for development of a cellular system, we are not mission's broad discretion in experimentation and encouragement of the broader use of radi upon the possible success of any antitrust actions which may in the future be brought, nor In affirming the 30 MHz allocation and authorization of SMRS, to be treated in the same tion of 30 MHz to the private services, which the Commission itself has stated to be sever - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n94 51 F.C.C.2d at 976. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - So ordered.